China News Service, March 1. According to the WeChat official account of the Supreme People's Procuratorate, on March 1, the Supreme People's Procuratorate held a press conference on the theme of "Strengthening Intellectual Property Procuratorial Services in the New Era to Ensure Innovation-Driven Development" to release the intellectual property rights of procuratorial organs. A typical case of comprehensive judicial protection.
Typical cases of comprehensive judicial protection of intellectual property rights in procuratorial organs
Case number one
Damou Vision Culture Media Co., Ltd.,
Copyright infringement case involving four persons including Zhang
【Key words】
Internet Infringement Equal Protection of Copyright Execution Links Enterprise Compliance
【gist】
In the information age, the procuratorial organs should increase the punishment for online copyright infringement, and protect the legal rights of domestic and foreign copyright owners equally in accordance with the law.
Promote the establishment and improvement of the mechanism for the connection between administrative law enforcement and criminal justice, and actively play the role of legal supervision in the "connection of executions".
Combined with case handling, we will promote industry governance and promote corporate compliance operations.
1. The facts of the case
In May 2017, Damou Vision Culture Media Co., Ltd. (hereinafter referred to as Damou Vision Company) was established. Zhang and Li were responsible for the daily operation and management of the company, and Liu and Ma were the directors of the company's content production department.
In May 2018, Damou Vision Company developed a video playback app called "Damou Vision" and launched it online.
After the program was launched, Damou Vision Company, without the permission of the obligee, downloaded and edited a large number of domestic and foreign videos by Liu and Ma Green, and provided them to users to watch through the video app, and made profits by collecting membership fees.
On January 10, 2020, the public security organs arrested Zhang and other four people.
After extraction and identification of background data: among the infringing films edited and uploaded by the “Damou Vision” App, including 302 copyrighted works by member companies of the American Film Institute, users watched more than 420,000 times and downloaded more than 19,000 times; Tencent The company owns 70 copyrighted works, and users have viewed it more than 81,000 times and downloaded it more than 4,000 times.
There are more than 830,000 registered users of the "Damou Vision" App, and more than 90,000 recharge payment orders have been paid, with a payment amount of more than 1.4 million yuan.
2. The performance of the procuratorial organs
In December 2019, the Shenzhen Municipal Market Inspection Bureau of Guangdong Province found that the "Damou Vision" App may be suspected of criminal crimes, and notified the Shenzhen Nanshan District People's Procuratorate (hereinafter referred to as the Nanshan District Procuratorate) of the relevant situation, and the Nanshan District Procuratorate initiated administrative law enforcement. Linkage with criminal justice work mechanism.
In January 2020, the Shenzhen Market Inspection Bureau transferred the clue to the Nanshan Branch of the Shenzhen Public Security Bureau, and the Nanshan District Procuratorate promptly intervened in the investigation and guided the public security organs to collect evidence.
On February 13, 2020, the Nanshan District Procuratorate approved the arrest of Zhang and other four people on suspicion of copyright infringement, and proposed to continue the investigation.
On March 30, 2020, the public security organ transferred the case to the Nanshan District Procuratorate for review and prosecution.
On April 29, 2020, the Nanshan District Procuratorate prosecuted Damou Vision Company and four people including Zhang, Li, Liu, and Ma Lu for the crime of copyright infringement.
On November 11, 2020, the Shenzhen Nanshan District People's Court sentenced the defendant Damou Vision Company to a fine of RMB 400,000 for the crime of copyright infringement, and sentenced the defendant Zhang and other four persons to fixed-term imprisonment ranging from one to three years, and fined RMB 20,000 to 100,000 yuan.
Some defendants appealed against the first-instance judgment.
On March 11, 2021, the Shenzhen Intermediate People's Court ruled to dismiss the appeal and upheld the original judgment.
3. Typical meaning
(1) To crack down on crimes of copyright infringement on the Internet in accordance with the law, and to equally protect the legal rights of domestic and foreign copyright owners.
With the rapid development of information network technology, the dissemination of works has become more convenient and rapid. Some lawbreakers use the Internet to commit illegal and criminal acts of copyright infringement, which not only destroys the socialist market economic order, but also causes damage to the legitimate rights and interests of rights holders, and should be punished according to law.
According to the "Berne Convention" and the provisions of my country's Copyright Law, the foreign film and television works involved in the case are protected by my country's laws.
In this case, the procuratorate upholds the concept of equal protection, strengthens the criminal judicial protection of the copyrights of domestic and foreign rights holders, and earnestly safeguards the legitimate rights of creators, disseminators, and users.
(2) Improve the intellectual property "execution connection" mechanism, and form a joint force to protect intellectual property.
In order to smooth the connection channels and solve the problems of poor information and "replacing punishment with punishment", the Nanshan District Procuratorate, together with relevant departments, has established and improved the working mechanism of "connection between executions and punishments" in intellectual property cases.
For difficult and complex intellectual property cases suspected of crimes, if the relevant departments consult the procuratorial organs to intervene in advance, the Nanshan District Procuratorate will take the initiative to put forward legal application opinions according to law, and strengthen the guidance of evidence collection.
After the case is accepted, the administrative law enforcement agency will be notified of the progress of the case in a timely manner, and the common problems found in the case will be sorted out and fed back, so as to form a comprehensive force to protect intellectual property rights.
(3) Actively promote industry governance and urge enterprises to operate in compliance with regulations.
The Nanshan District Procuratorate actively exerted its functions to urge the companies involved to divest illegal businesses and conduct comprehensive compliance rectification.
Damou Vision Company improved the legal risk prevention and control mechanism, deleted all the infringing content in the App, and issued an announcement to notify the infringement situation, refunded the recharge users, and organized a special team to carry out copyright purchase negotiations.
The procuratorial organs implement the legal popularization responsibility system of "who enforces the law, popularizes the law", and in conjunction with the Shenzhen Copyright Association, carries out targeted intellectual property criminal compliance lectures based on cases, and guides more enterprises to operate legally and compliantly.
Case 2
Shandong Fumouda Environmental Protection Engineering Co., Ltd.,
The case of Ma Mouqiang and Guo Mou infringing trade secrets
【Key words】
Infringement of commercial secrets criminal incidental civil lawsuit pleaded guilty and accepted punishment to facilitate civil mediation
【gist】
When handling criminal cases of intellectual property infringement, procuratorial organs shall promptly inform rights holders of their procedural rights and obligations, and fully protect their rights to know and to participate.
Do a good job in the work related to criminal incidental civil litigation in intellectual property cases, strengthen interpretation and reasoning, urge infringers to plead guilty and accept punishment, make active compensation, achieve civil mediation, and realize the organic unity of the "three effects" of handling cases.
1. The facts of the case
Ma Mouqiang and Guo Mou were employees of Shandong Tianmou Energy Co., Ltd. (hereinafter referred to as Tianmou Company).
In October 2017, after Ma Mouqiang resigned from Tianmou Company, he borrowed the identity of others to establish Shandong Fumouda Environmental Engineering Co., Ltd. (hereinafter referred to as Fumouda Company).
Ma Mouqiang actually controls and operates the company, and employs Guo Mou as the technical director.
From October 2017 to August 2018, Guo violated the confidentiality agreement and confidentiality regulations, and used the technical information of Tianmou Company in Fumouda Company to produce and operate a fluidized bed drying device similar to that of Tianmou Company. Enter the Fumouda company account.
After identification, the technical information of the integrated borehole fluidized bed treatment device owned by Tianmou Company is a trade secret, and the fluidized bed technical information used by Fumouda Company is the same as the above-mentioned technical information of Tianmou Company.
After auditing, Fumouda Company violated trade secrets and caused Tianmou Company to lose more than RMB 4.8 million.
2. The performance of the procuratorial organs
On April 16, 2019, the High-tech Industry Development Zone Bureau of Jinan City Public Security Bureau in Shandong Province transferred the suspects Ma Mouqiang and Guo Mou to the crime of infringing trade secrets and transferred them to the People's Procuratorate of Jinan High-tech Industrial Development Zone (hereinafter referred to as the High-tech Zone Procuratorate). ) to review the prosecution.
The High-tech Zone Procuratorate informed the infringed party, Tianmou Company, of its rights and obligations in litigation according to law, and listened to its opinions.
A company of Tian proposed to file a criminal incidental civil lawsuit to reduce the cost of rights protection and restore economic losses.
The High-tech Zone Procuratorate visited the right holders to understand the technology involved in the case, listened to the opinions of those with specialized knowledge, comprehensively reviewed the evidence of the whole case, consolidated the relevant evidence base, and additionally determined that Fumouda Company was suspected of a unit crime.
On October 14, 2019, the High-tech Zone Procuratorate prosecuted the defendant unit Fumouda Company and the defendants Ma Mouqiang and Guo Mou for the crime of infringing business secrets.
On June 10, 2020, Tianmou Company filed a criminal incidental civil lawsuit.
On August 3 of the same year, the People's Court of Jinan High-tech Industrial Development Zone made a criminal and civil first-instance judgment, and sentenced the defendant company Fumouda Company to a fine of RMB 300,000 for the crime of infringing business secrets; the defendants Ma Mouqiang and Guo Mouqiqi were sentenced respectively Four years and three years and six months in prison, and fines of RMB 60,000 and 50,000; Fumouda Company was ordered to compensate Tianmou Company for economic losses of more than RMB 4.8 million, and Ma Mouqiang and Guo Mou were jointly and severally liable.
After the first-instance judgment, the defendant unit and the two defendants both appealed.
During the second instance, the procuratorial organs strengthened the interpretation and reasoning, and prompted the two defendants to voluntarily plead guilty and accept punishment. Fumouda Company and Tianmou Company signed an understanding agreement before the trial of the second instance, and took the initiative to compensate the right holder for economic losses.
On April 2, 2021, the Jinan Intermediate People's Court issued a criminal mediation with civil mediation based on the content of the understanding agreement.
The court of second instance considered reaching civil mediation as a discretionary lenient circumstance in sentencing, and made a second-instance judgment on June 4, 2021, and sentenced the defendant, Fumouda Company, to a fine of RMB 300,000 for the crime of infringing business secrets; Defendants Ma Mouqiang and Guo Mou were sentenced to three years in prison with four years of suspension and three years in prison with three years of suspension, and fined RMB 60,000 and 50,000.
3. Typical meaning
(1) Timely inform rights holders of their litigation rights and obligations, and fully protect their legal rights.
Since February 2021, the Supreme People's Procuratorate has deployed procuratorial organs across the country to carry out notification of rights and obligations of rights holders in criminal cases involving intellectual property infringement, so as to effectively protect rights holders' right to know and to participate.
By participating in litigation activities, the right holder can be informed of the progress of the case in time, supplement evidence such as proof of rights, economic losses, etc., express opinions on the professional issues of the case, and can file a criminal incidental civil lawsuit, which is conducive to the timely identification of the facts of the case and the promotion of the case in a timely manner in accordance with the law. Fair treatment, strengthen judicial protection of intellectual property rights.
(2) Strengthen the centralized and unified performance of intellectual property inspections, and give full play to the role of comprehensive judicial protection.
Implementing centralized and unified performance of duties in intellectual property cases will help to achieve the best protection of the rights and interests of rights holders.
The intellectual property rights holder filing a criminal incidental civil lawsuit in accordance with the law is conducive to solving the problems of criminal responsibility and civil liability in one piece, reducing the burden of the right holder filing a separate civil lawsuit, improving the efficiency of case handling, and saving judicial resources.
In this case, after a company filed a criminal incidental civil lawsuit, the procuratorial organ actively carried out relevant work such as procedure connection, mediation and compensation, and achieved good legal and social effects.
(3) Punish crimes of infringing business secrets in accordance with the law, and strengthen interpretation and reasoning to facilitate compensation and understanding.
In this case, the procuratorial organ solved technical difficulties by visiting rights holders and listening to expert opinions, and accurately identified trade secrets and infringing acts, laying a solid foundation for criminal charges.
Strengthening the interpretation and reasoning, prompting the defendant to plead guilty and accept the punishment and take the initiative to compensate the right holder for economic losses, the two parties reached an understanding agreement, and the court of second instance issued a criminal mediation letter attached to the case, and considered it as a second-instance decision to consider the circumstances less severe, which effectively punished commercial violations. The secret criminal act has effectively safeguarded the legitimate rights and interests of the obligee.
Case 3
Shaanxi Baishui Moukang Wine Industry Co., Ltd.
Application for Administrative Litigation Supervision
【Key words】
Substantive Resolution of Trademark Disputes and Complaint Source Governance Settlement Agreement
【gist】
For trademark disputes arising from historical reasons, the procuratorial organs should find out the historical evolution of the relevant trademarks in handling the case, pay attention to the governance of the source of the lawsuit behind the case, strengthen the interpretation of the law, guide the parties to reach a settlement agreement, solve the relevant trademark disputes in a package, and promote trademark administration. Substantial resolution of disputes.
1. The facts of the case
Shaanxi Baishui Moukang Liquor Co., Ltd. (hereinafter referred to as Baishui Moukang Company) is the trademark owner of the "Baishui Moukang" trademark.
Yichuan Moukang Jiuzu Asset Management Co., Ltd. (hereinafter referred to as Jiuzu Company) is the trademark owner of the "Mukang" trademark, and the company permits Luoyang Moukang Holdings Co., Ltd. (hereinafter referred to as Luoyang Moukang Company) to use the "Mokang" trademark .
On August 9, 2016, the Chaoyang Branch of the Beijing Administration for Industry and Commerce, based on a report from a company in Luoyang, issued an "ordered correction" to Chaoyang Beiyuan Branch of Beijing Yonghui Supermarket Co., Ltd. (hereinafter referred to as Yonghui Supermarket Beiyuan Branch). Notice", it was determined that the manufacturer of the supermarket sold the liquor of Baishui Moukang Company with prominent use of the word "Mokang", which was similar to the "Mokang" trademark that Luoyang Moukang Company had rights to, and ordered Yonghui Supermarket Beiyuan The branch company shall stop selling the above-mentioned products that infringe the exclusive right to use the registered trademark.
A certain health company in Baishui filed an administrative lawsuit with the People's Court of Chaoyang District, Beijing.
After review, the court held that the "Notice of Ordering Correction" had no actual impact on the legitimate rights and interests of Baishui Moukang Company, it was not a stakeholder of the administrative act involved in the case, and did not meet the statutory conditions for prosecution, and ruled to reject the Baishui Moukang Company's case. sue.
Baishui Moukang Company filed an appeal and retrial with the Beijing Intellectual Property Court and the Beijing Higher People's Court, but neither received support.
After that, Baishui Moukang Company applied to the Fourth Branch of the Beijing Municipal People's Procuratorate for supervision.
2. The performance of the procuratorial organs
After accepting the case, the Fourth Branch of the Beijing Municipal People's Procuratorate focused on the following work:
The first is to find out the history of the trademarks of both parties.
In the 1970s, a certain Kang winery in Yichuan County, Henan Province, a certain Kang winery in Ruyang County, Henan Province, and a certain Kang winery in Baishui County, Shaanxi Province all produced "Mukang" wine, but did not use "Mukang" as a trademark. Apply for registration to be used only as a specific name for the wine.
Afterwards, the three wineries mentioned above had filed applications for trademark registration. Since there was no trademark co-ownership system at that time, after coordination with relevant departments, it was decided that a certain Kang winery in Yichuan County, Henan Province would register the trademark "Xukang", and the other two would use it jointly.
In the more than ten years of sharing the "Mukang" trademark, the three wineries have gradually formed their own product characteristics and consumer groups by marking the company name on the product packaging. Significantly improved, all three wineries have contributed to the development and growth of a Kang brand.
In September 1992, the trademark "Mukang" entered the renewal registration period, and the three wineries had another dispute over the ownership and use of the trademark.
Despite the coordination of relevant departments, a solution has never been reached.
After the trademark authority approved the "Baishui Moukang" trademark for registration.
After the transfer of the trademark rights of "Mukang", the owner of the trademark was changed to Jiuzu Company.
After the transfer of the trademark rights of "Baishui Moukang", the owner of the trademark was changed to Baishui Moukang Company.
The second is to sort out the disputes between the two parties.
Since 2015, Luoyang Moukang Company has successively complained to the administrative department of Baishui Moukang Company and filed civil lawsuits in some parts of the country on the grounds that Baishui Moukang Company has violated the exclusive right of registered trademark and unfair competition.
Baishui Moukang Company filed a civil lawsuit on the grounds that Luoyang Moukang Company printed "the only enterprise holding the Moukang trademark" on the product packaging it produced and sold, which constituted commercial defamation.
After review, the procuratorial organ believes that the accused "Notice of Ordering Correction" clearly states that the manufacturer of the infringing goods involved is Baishui Moukang Company, and Yonghui Supermarket has removed the products produced by Baishui Moukang Company from the shelves nationwide.
Baishui Moukang Company has a legal interest in the specific administrative act being sued, and is qualified as a subject of litigation.
Due to the complex historical factors of the trademarks "Mukang" and "Baishui Mukang", the two trademarks have coexisted in the market for many years, and the administrative organ's order to stop the sale of the goods involved has had a substantial impact on Baishui Mukang Company, and the case should go to substantive trial program.
The procuratorial organ believes that this case has the conditions for protest, but considering the need to completely solve the source problem behind the administrative lawsuit, it decided to guide Baishui Moukang Company and Luoyang Moukang Company to reconcile.
The procuratorial organ communicated with both parties many times, and finally facilitated the two parties to reach a settlement agreement.
The two parties agreed to use their respective trademarks in strict accordance with the provisions of the Trademark Law. When Baishui Moukang Company uses the trademark "Baishui Moukang", the size of the trademark text shall be the same.
After that, both parties withdrew their lawsuits in 5 civil lawsuits.
In addition, Baishui Moukang Company and Jiuzu Company reached a coexistence agreement on the trademarks of "A Kang Jiu Zu and Figure" and "A Kang Jiu Zu Manor", and withdrew the prosecution for two related trademark administrative litigation cases.
On September 3, 2020, Baishui Moukang Company submitted the "Application for Withdrawal of Supervision Case" to the Fourth Branch of the Beijing People's Procuratorate. After review, the court concluded that the withdrawal of the supervision application was in compliance with relevant laws and regulations, and concluded the review of the case.
3. Typical meaning
(1) Accurately grasp the historical factors of trademark disputes and strengthen trademark protection in accordance with the law.
When handling a trademark dispute case, the procuratorial organ should find out the historical evolution of the relevant trademark for trademark disputes arising from historical reasons, pay attention to the inheritance of the relevant trademark owners in terms of operation and goodwill, properly delineate the boundaries of commercial signs and respect the historical evolution of trademarks The relationship between.
The approval and registration of the relevant trademarks "Mukang" and "Baishui Mukang" in this case were formed under specific historical conditions. Dealed with the relationship between protecting trademark owners and maintaining market order.
(2) Actively extend the procuratorial function and promote the substantive resolution of trademark administrative disputes.
Procuratorial organs handling trademark administrative litigation supervision cases, especially cases with historical background factors and continuous civil disputes between the two parties, should focus on strengthening the governance of the source of litigation behind the case and avoid handling the case.
It is necessary to base on the facts of the cases involved, focus on interpretation and reasoning, and guide the parties to narrow their differences and build consensus.
When dealing with trademark administrative disputes in this case, we conducted investigation and verification based on the basic facts of the case and the substantive demands of the parties, precisely located the root causes of the trademark disputes, and put forward targeted reconciliation suggestions, so as to promote a package settlement of disputes between the two parties, and to promote the substantive resolution of administrative disputes. Really close the case.
Case 4
Yuyao Hao Lubricant Firm
Selling goods with counterfeit registered trademarks
Administrative non-litigation enforcement supervision case
【Key words】
Administrative Non-litigation Execution Additional Supervision of Persons Being Executed
【gist】
In an administrative non-litigation enforcement case of infringement of intellectual property rights, the sole proprietorship enterprise as the person subject to enforcement cannot pay off the debts determined by the effective legal document, and the administrative organ fails to apply to the court to add its investor as the person subject to enforcement in a timely manner, the procuratorial organ shall advise the administrative organ in accordance with the law Apply for additional, ensure that administrative penalties are implemented in place, and promptly punish infringement and illegal acts.
1. The facts of the case
Haomou Lubricant Firm in Yuyao City, Zhejiang Province (hereinafter referred to as Haomou Firm) is a sole proprietorship enterprise, and the investor is Hanmou.
On September 16, 2019, Haomou firm was given administrative punishment by Yuyao Market Supervision Bureau (hereinafter referred to as Yuyao Market Supervision Bureau) for selling antifreeze, lubricating oil and other commodities with counterfeit registered trademarks, and ordered to immediately stop the infringement, The infringing goods were confiscated and seized and a fine of RMB 30,000 was imposed.
Haomou firm did not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, nor did it fulfill its obligation to pay the fine after the notice was served.
The Yuyao City Court issued an administrative ruling, approving the compulsory execution and filing the case for execution.
Haomou firm paid part of the execution payment of RMB 15,000 on the day when the case was filed.
On December 24, 2020, the Yuyao City Court ruled to terminate the execution procedure because a certain firm of Hao had no property available for execution.
2. The performance of the procuratorial organs
In February 2021, the People's Procuratorate of Yuyao City, Zhejiang Province (hereinafter referred to as the Procuratorate of Yuyao City) found that Haomou Firm was a sole proprietorship enterprise in the performance of its duties. The debt of the enterprise bears unlimited liability, and the Yuyao Market Supervision Bureau, after the court ruled to terminate the execution procedure, failed to apply for an additional investor, Mr. Han, as the person subject to execution, so it started the supervision procedure ex officio.
The Yuyao City Procuratorate successively visited the Yuyao City Market Supervision Bureau and the Yuyao City Court to verify the administrative punishment and its enforcement, and communicated on the legal application of the administrative non-litigation enforcement of sole proprietorships. Provisions on Several Issues Concerning Changes and Additions of Parties During Enforcement", Paragraph 1 of Article 13: "A sole proprietorship, as the person subject to enforcement, cannot pay off the debts determined by the effective legal documents, and the applicant for enforcement applies for changing or adding its capital as the person subject to enforcement. The people’s court shall support it”, the civil enforcement provisions shall apply to administrative non-litigation enforcement.
The Yuyao Market Supervision Bureau did not apply for the addition of the person subject to execution, which did not comply with the relevant laws and regulations.
On April 25, 2021, the Yuyao City Procuratorate issued a "Procuratorial Recommendation" to the Yuyao Market Supervision Bureau, suggesting that it apply to the court to resume the execution of the Haomou firm's case, and at the same time apply for an additional investor, Hanmou, as the person subject to execution.
On May 6, 2021, the Yuyao Market Supervision Bureau adopted the procuratorial suggestion and submitted an application to the court.
The Yuyao City Court resumed the execution and ruled that the additional investor, Han Mou, was the person subject to execution, and the execution measures were taken and all executions were completed.
3. Typical meaning
(1) Suggesting additional persons subject to execution in accordance with the law to ensure that the administrative punishment is properly executed.
According to relevant laws and regulations, the contributors of sole proprietorships and shareholders of a one-person limited liability company that cannot prove that the company's property is independent of the shareholders' own property shall be liable for the debts of the enterprise.
If a company or enterprise that meets the above conditions is unable to repay the debts determined by the effective legal documents, and the administrative organ fails to apply to the court to add its shareholder or investor as the person subject to execution, it will weaken the administrative punishment for infringement and illegal acts.
Procuratorial organs supervise such cases in accordance with the law, and promote the implementation of administrative penalties, which will help safeguard national interests and public interests, and protect the legitimate rights and interests of intellectual property rights holders.
(2) Make full use of big data to mine clues of similar cases and improve the quality and efficiency of supervision.
On the basis of the successful handling of the case, the procuratorial organ in this case, by extracting the characteristics of the case, conducted a big data analysis and comparison of the Judgment Document Network, the enterprise credit information publicity system, etc., and found that the investor of the sole proprietorship enterprise and the shareholder of the one-person company were not added according to the law. There are many clues about similar cases, and after investigation and verification, procuratorial suggestions are put forward together, and the relevant administrative law enforcement agencies are urged to pay attention to reviewing the type of enterprise and the capital contribution of the person subject to execution when handling such cases, and apply to the court in time for additional Persons subject to enforcement shall increase punishment for violations of intellectual property rights.